In the Matter of a John Doe Grand Jury Investigation

539 N.E.2d 56, 405 Mass. 125, 1989 Mass. LEXIS 172
CourtMassachusetts Supreme Judicial Court
DecidedJune 12, 1989
StatusPublished
Cited by3 cases

This text of 539 N.E.2d 56 (In the Matter of a John Doe Grand Jury Investigation) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of a John Doe Grand Jury Investigation, 539 N.E.2d 56, 405 Mass. 125, 1989 Mass. LEXIS 172 (Mass. 1989).

Opinion

*126 Wilkins, J.

We deal with questions reported by a Superior Court judge arising out of the refusal of a witness, purportedly immunized by a single justice of this court, to testify before a Middlesex County grand jury. See G. L. c. 233, §§ 20C-20H (1986 ed.).

The questions come to us on a statement of agreed facts which we summarize. The witness, who was summoned before a grand jury that was investigating alleged violations of the conflict of interest and extortion statutes, validly claimed his privilege against self-incrimination. On application of the Attorney General, a single justice of this court issued an order granting immunity to the witness. 1 The witness appeared with counsel before the grand jury, answered certain questions but declined to answer others, asserting his privilege against self-incrimination expressed in the Fifth Amendment to the United States Constitution and in art. 12 of the Massachusetts Declaration of Rights.

The Attorney General then initiated contempt proceedings in the Superior Court. The witness challenged the jurisdiction of the court, claiming that such a contempt proceeding could only be brought before a single justice of the Supreme Judicial Court. The first reported question concerns this issue. The witness also argued that, in commencing the contempt proceeding, the Attorney General should have followed the complaint procedure prescribed by Mass. R. Civ. P. 65.3, as appearing in 386 Mass. 1244 (1982), but that he had not done so. The second reported question concerns this issue. The witness argued further that, in any event, the immunity he was granted did not protect him from self-incrimination if he were to answer *127 the questions that he declined to answer before the grand jury. The Superior Court judge accepted the witness’s argument that immunity set forth in G. L. c. 233, § 20G, was not as broad as it should be in order to protect the witness’s State constitutional rights. The judge concluded that the grant of immunity did not include immunity from prosecution for a crime not listed in G. L. c. 233, § 20D. The third issue we discuss involves the scope of the immunity granted to the witness.

We allowed the parties’ joint application for direct appellate review. We conclude that the question of the witness’s contempt of court was properly before the Superior Court judge and that the immunity granted to the witness fully protected his constitutional rights against self-incrimination.

1. The first reported question asks whether the Superior Court judge was correct in rejecting the witness’s claim that the contempt proceeding should have been brought in the Supreme Judicial Court for the county of Suffolk. 2 We answer in the affirmative.

Section 20H of G. L. c. 233 provides that if a witness, immunized by a Justice of this court, thereafter refuses to testify, contempt proceedings should be brought “in the court where the alleged contempt occurred." The statute says that the proceeding should be brought where the alleged contempt was committed; it does not say that the proceeding should be brought in the court whose order the witness allegedly failed to carry out. An immunized witness’s refusal to testify before a grand jury sitting in a county of this State is more nearly a contempt committed in the Superior Court of that county than it is a contempt committed in the single justice session of this court. See Mass. R. Crim. P. 5 (a) and (h), 378 Mass. 850 (1979).

*128 The statute is admittedly ambiguous on this point. We elect an interpretation that produces the more practical result, leaving the administration of an immunity order to a judge in the county where the grand jury is sitting. We recently said that “a contempt proceeding initiated in the Superior Court pursuant to § 20H will normally be the proper procedure to follow when an immunized witness refuses to testify” (emphasis supplied). Commonwealth v. Steinberg, 404 Mass. 602, 608 (1989). See Ward v. Coletti, 383 Mass. 99, 109 (1981).

2. The judge was correct in declining to dismiss the contempt proceeding in response to the witness’s claim that the Commonwealth should have filed a complaint pursuant to Mass. R. Civ. P. 65.3. We, therefore, answer the second question in the affirmative. 3 As the language just quoted from our opinion in Commonwealth v. Steinberg indicates, a contempt arising out of the violation of a § 20E immunity order is governed by § 20H. The immunity order issued by the single justice of this court was not a court order to which rule 65.3 applies. See rule 65.3 (a). Rule 65.3 (b) contemplates that there would be a “civil action out of which the contempt arose.” There is no underlying civil action in the rule 65.3 sense involved in this case.

3. The third issue concerns the scope of the immunity granted by an order of the single justice. 4 The question is whether the judge below was “correct in deciding that the scope of immunity granted to the witness pursuant to [§ 20G] is limited only to transactional immunity for crimes enumerated in the order of immunity.”

*129 When a single justice orders a witness to testify before a grand jury concerning the grand jury ’ s investigation of a crime or crimes listed in § 20D, the immunity granted is transactional immunity, immunity from prosecution for offenses to which the compelled testimony relates. See Kastigar v. United States, 406 U.S. 441, 443 (1972). The crimes as to which a witness is thus immunized are not only those crimes listed in § 20D but also any crime related to a transaction about which the witness is compelled to testify. Cf. In re Vericker, 446 F.2d 244, 247 (2d Cir. 1971) (immunity extends to testimony conceming offenses not themselves grounds for grant of immunity). We have characterized § 20G immunity as a grant of transactional immunity. See Attorney Gen. v. Colleton, 387 Mass. 790, 797 n.8 (1982). Any contrary construction of G. L. c. 233, § 20G, and related sections, would make the immunity statute ineffective, because the immunity granted would not be coextensive with the witness’s art. 12 right against self-incrimination. See Attorney Gen. v. Colleton, supra at 799, 801; Emery’s Case, 107 Mass. 172, 181-182 (1871).

An immunized witness may not be prosecuted if his compelled testimony implicates him in any crime regardless of whether that crime is referred to in § 20D or in the order granting immunity. Thus, it makes no difference that crimes such as compounding a felony (G. L. c. 268, § 3 [1986 ed.j), and tax fraud (G. L. c.

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Bluebook (online)
539 N.E.2d 56, 405 Mass. 125, 1989 Mass. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-a-john-doe-grand-jury-investigation-mass-1989.